Rights Associated With Free Movement - Essay Example

? European Union law Rights of residence and rights associated with free movement The directive is planning to do away with the obstacles that hinder the free movement of persons and give an opportunity to any European citizen to reside in a country other than their own.1 This specific council directive 90/364/EEC, which is on the rights of residence, only focuses on the nationalities that are European and leaves the others out. This was set on 1990. On 29, April the European parliament and the council of the union together with their family members decided to allow the member states to move and reside freely within the territory of the member states amending regulation (EEC) NO 1612/68. Rights of residence Member states will issue the right of residence to nationals of the member states who are not enjoying other provisions of the community law which has been provided that they themselves and the their family members are covered by medical insurance in respect of all the risks in the host member state and have sufficient resources, which will be able to sustain them and avoid being a burden to the social security system of the host member state during their period of residence. All the citizens of the union have the right to enter another member state by only possessing a valid passport or an identity card. Under no circumstance will they require an entry or exit visa. Claude, who is the manager of the restaurant, is granted a job by the owner Henri MangeTout, because he thinks that Claude is a Belgian citizen. In reality, since Claude is a Congolese from Dr Congo, his rights of residence do not fall under this Directive by the council. It is stated that after residing legally in EU country continuously for 5 yrs, you automatically get the rights of permanent residence, without even having to fulfill other requirements.2 Their staying in any of the member state is not affected by temporary absences and longer absences. Towards the end of His 5th year of continuous legal residence, he and his family are supposed to apply to the authorities for a permanent residence card that will enable them to be regarded as permanent residence of that state. This will give him and his family a chance to be able to enjoy the same benefits, advantages and rights as nationals. They can now stay there as long as they desire. The member states shall grant a residence permit the validity of which will be limited to a period of 5 years on the basis that it can be renewed. On the other hand, if they require revalidation of the permit at the end of the 2 years it is possible. No matter what takes place their rights of residence is guaranteed as long as they fulfill the conditions of the member state in which they are residing. 3 Rights of free movement Claude and his family have the opportunity not to be deported, if they take the right legal moves to make sure every detail pertaining their dwelling is settled well by the London government. They have to make sure they follow up their rights of becoming citizens automatically after staying in United Kingdom for a period of 5 years, which is taken by the legislation as a substantial length of time for an individual to be well conversant with the system of that country. By doing this, they will be exercising their rights of residence within that state, which has been laid down by the member states of the European Union.4 Their son Patrice who is also a Congolese, but was born in Belgium, which has made him now to have the Belgium nationality, has also the right to reside in United Kingdom. His stay in the United Kingdom for a period of 5 years since 2007 together with his family is part of the council directive that shall facilitate him to become a citizen automatically. Also, it is stated that, if your partner or any of the relative has been authorized by the state to live with you as family members, they also get the opportunity to automatically get the right s of permanent residence after having lived in the other country for a period of 5 years. This shall not be a crime as the immigration department had stated earlier. They have the right to reside now as citizens and defend themselves in court also, and prevent the immigration office from deporting them back to their country DR Congo. Ana who is also in the same category is not a citizen of one of the member state which is in the European Union. She is from Brazil, and married to Henri who is French, and they both came to live in London, in United Kingdom. She also has a son, Benjamin whom she had from a previous relationship. Benjamin is a Portuguese citizen. When their case is considered, the family has ties to a person who is of French nationality, and a citizen of one of the countries that is a part of the European Union. This grants them an opportunity to stay their only for a definite period of time which is normally 3 months. All they will need is a legitimate passport and depending on their home nation they may need an entry visa also. They all came to London in April, which means they have lived there more than 3 months. They have to apply for a residence document with the authorities in the new country. The registration certificate is issued without charge and the residence card should be legitimate for a period of 5 years or depending on your planned time of stay if it is shorter.5 After this, Ana and Benjamin need not to be bothered over their rights to be citizens off France, since after 5 years they automatically become nationals of the member state. Even if, Ana decides to divorce Henri, the marriage bond and conditions will not at any time affect her right of residence and the rights associated with free movement in the United Kingdom. Anna will be able to move freely in any of the member states that she would love to return to. Ana will still get her rights to be a citizen of France and be able to live in United Kingdom. The council directive states that; the spouse and the dependent children of a national of a member state who is entitled to the rights of residence within the territory of the state which is a member to the European union, is allowed to take up any employment activity at any place within the location of that member state, even if it occurs that they are not citizens of the member states. They are no other qualifications that should hinder Antoine from being employed at all. He has the right to stay in any of the countries. The new nation may necessitate that he has some little familiarity of their language. Antoine was studying English in London and in no time he will become good at it. Henri did not have to refuse him a chance to be employed as a waiter because his English was not good enough. Because the union has a directive on the right of the citizens of the union to move freely within the member states, Antoine has full right to exercise his right to be employed by the restaurant in London. All these parties after their rights have been infringed by the decision of the national authority as for Claude and Marie, and by fellow citizens as for Antoine, they have to seek redress first by appealing through the means provided by its national legislation. The EU law on free movement of workers can be invoked in national proceedings before the national authorities and courts. In a related scenario, Case C-434/09 McCarthy v Secretary of State for the Home Department Ms McCarthy, a citizen of the United Kingdom was as well a citizen of Ireland. She was born in the UK and had for all time resided there, without ever having exercised her right to shift and inhabit freely within the province of other EU Member States. Following her matrimony to a Jamaican citizen, Ms McCarthy obtained an Irish authorization and applied to the British authorities for residence permission as an Irish citizen wishing to be located in the United Kingdom under European Union guideline. Her companion applied for a residence file as the other half of a Union citizen. These requests were discarded on the ground that Ms McCarthy could not be able to support her abode on Union law or invoke Union decree to regularize the dwelling of her spouse for the reason that she had never exercised her right to move and stay in Member States other than the stated United Kingdom.6 Furthermore, it can be related with the Case of Sabeh El Leil v. France In Sabeh El Leil v. France the court held jointly that there had been a breach of Article 6(1) of the ECHR in respect of the candidate, an ex-employee of the Kuwaiti Embassy in Paris, whose allegations against the Embassy for reimbursement in respect of his removal from office was declared inadmissible by the French Courts on grounds of jurisdictional exemption. The candidate, a French citizen, had been working as an accountant in the Embassy. As soon as the Embassy terminated the applicant's employment, the applicant brought accusations for reimbursement against the State of Kuwait and was paid damages by the Paris Employment Tribunal. On the other hand, when the applicant appealed before the Paris Court of Appeals and the claim declared unacceptable. The candidate further appealed to the Court of Cassation, challenging the failure of the Court of Appeals to give ample reasons for its pronouncement in breach of the French Civil Code. Nevertheless, the appeal was dismissed.7 These cases show a close relationship with the parties. Antoine has the right to be employed as one of the waiter in the restaurant. The manager does not have the right to deny him employment because he lacks a good ground of defense against his claim that his English is not good. Redress by the national courts These parties can also rely on the redress by the national courts at the national level. The member states are responsible for effecting the community law, the very first thing that they should be in a position to do in case they are affected by a breach of European community law, is just to pursue the issue with the relevant national authorities and explore all available ways to address the matter through internal procedures. The managerial enforcement of the EU law is achieved through the national administrative ways. 8 The national courts within each of the European Union countries sees to it that the law is appropriately applied in those states. This is brought into place because there is a risk that the courts may interpret the European Union Law in completely different ways. Within this court, there is a chance for a preliminary ruling procedure. If the national court is in not sure about the interpretation of any of the European Union law, then it can ask the court of justice for advice or how it should go about with the case. The commission only begins these kinds of proceedings if it believes that one of the nations is failing to its obligations under the European Union law. When the system of the first round references with the doctrines of predominance and direct effect are put together it gives individuals and industries, the opportunity to assert community human rights in the national courts. Therefore, the people or the companies may be able to use the community regulation as both shield to guard them from any action made by the nationwide authorities, which infringes the community rights and as a blade to give out a test to the national measures on grounds of incompatibility with society laws.9 In case of any of the fall backs, the administrative bodies and the national courts are the ones that are chiefly mandated to regulate the authorities of the nations that are members of the European Union in complying with the law.10 The commissions within the nations also do advise the parties to take into account the national means of redress because of the several advantages they provide to them. When they choose to use the redress available at national level, they will be capable of affirming their rights more directly than they could have done when they have to follow the proceedings which are brought by the commission and may take a lot of time. The national courts are the only ones that can give out orders to the administrative bodies and annul a decision that has already been made at the national level. They are also mandated to give orders to the states which are a member to the European Union, to make excellent the loss sustained by the persons as a result of the violation of the community law ascribed to it. Under the preliminary ruling in article 267 TFEU, the national courts are the ones who are allowed to develop minimum standards for remedies, when complaints by individuals have been raised that the human rights within the European regulation have been desecrated. The different legal systems offer a variety of solutions to the infringements of the policy in the field of employment. It makes sure that the law is interpreted well by the court of justice in the different member states and portrayed in the right way to the individuals. As it has been stated the fundamental functions of the national courts within the European Union is to oversee the functioning of the European legal order. They are seen as the community courts which are the most reliable to the parties that are facing the difficulties in these nations. For these parties to come to a better conclusion that will be just to them as individuals or their families, a good dialogue is needed between the court of justice and the national court. The individuals will be able to get better ruling at the national court, because the case law of the court of justice says that- as long as Article 234 EC is required to be fulfilled, it is the work of the national court to make the judgment whether to make a reference for a first round ruling and to prepare the questions for the reference. This gives it a large degree of autonomy which is much enjoyable than the national proceedings. Furthermore, Antoine, Anna and Claude’s family will have the open opportunity to question the government action, because the preliminary reference procedure provides a chance for the people and the national courts to do so. What is deemed important to the individual, when they rely on the national court, is that it is the one that renders the final judgment. Bibliography: Benedetto, Conforti and Francesco, Francioni.1997. Enforcing international human rights in domestic courts: Volume 49 of International Studies in Human Rights Series. Martinus: Nijhoff Publishers. Morten Broberg and Niels Fenger. Preliminary references to the European Court of Justice. Oxford; New York: Oxford University Press, 2010. Jean, Knodel. Relationship between the European Court of Justice (ECJ) and the National Constitutional Courts of the Member States with respect to control of legislative competences of the European Union On the example of the German BVerfG. Muunchen: GRIN Verlag GmbH 2009. David, Forsythe. Encyclopedia of human rights. Oxford; New York: Oxford University Press, 2009. Read More